1 Cohen, Felix S., Americanizing the White Man, Am. Scholar, No. 2, 1952, at 177–78.“What can we do to Americanize the Indian?” The question was earnestly put by a man who was about to assume control over our country's Indian affairs…. The Commissioner-elect was a kind and generous soul, but his Anglo-Saxon pride was ruffled by the fact that so many Indians preferred their own way of life, poor as it was, to the benefits of civilization that Congress longed to confer on them. Perhaps, if Indians did not realize that they needed more Indian Bureau supervisors and bigger and better appropriations to make real Americans out of them, it might be necessary to use a little force. A bronze-skinned figure in the audience arose. “You will forgive me,” said a voice of quiet dignity, “if I tell you that my people were Americans for thousands of years before your people were. The question is not how you can Americanize us but how we can Americanize you. We have been working at that for a long lime. Sometimes we are discouraged at the results. But we will keep trying. And the first thing we want to teach you is that, in the American way of life, each man has respect for his brother's vision. Because each of us respected his brother's dream, we enjoyed freedom here in America while your people were busy killing and enslaving each other across the water. The relatives you left behind are still trying to kill each other and enslave each other because they have not learned there that freedom is built on my respect for my brother's vision and his respect for mine. We have a hard trail ahead of us in trying to Americanize you and your white brothers. But we are not afraid of hard trails”. Id.Google Scholar

2 This Eurocentric bias has characterized white relations with American Indian Nations on both continents of the Western Hemisphere. It explains in large part the inherent assimilative/genocidal thrust of European colonial policies and practices respecting American Indian people for the past half-millenium. See Robert F. Berkhofer, Jr., The White Man's Indian: Images of the American Indian from Columbus to the Present 113–75 (New York: Alfred A. Knopf, 1979). See also Shelton H. Davis, Victims of the Miracle, Development and the Indians of Brazil (New York: Cambridge University Press, 1977); Daniel R. Gross, The Indians and the Brazilian Frontier, 36 J. Int'l Aff. 1 (1982); Richard Chase Smith, Liberal Ideology and Indigenous Communities in Post-Independence Peru, 36 J. Int'l Aff. 73 (1982).Google Scholar

3 Indian Nations in Latin American countries such as Brazil, Peru, Nicarauga, and Guatemala presently find themselves threatened with genocidal extinction by the familiar destructive forces accompanying European-defined progress, see sources cited note 2 supra. I would argue that an understanding of the tools developed by United States tribal nations that enabled them to survive a similar onslaught at the hands of nineteenth-century European colonizers would be of critical value to these contemporary Latin American indigenous nations.Google Scholar

4 See Berkhofer, supra note 2, at 33–69.Google Scholar

5 See James Muldoon, Popes, Lawyers and Infidels: The Church and the non-Christian World, 1250–1550, at 3–28 (Philadelphia: University of Pennsylvania Press, 1979); Robert A. Williams, Jr., The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought, 57 S. Cal. L. Rev. l (1983).Google Scholar

6 See Felix S. Cohen, Handbook of Federal Indian Law 50–58 (Charlottesville, Va.: Michie, 1982).Google Scholar

7 See Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Johnson v. Mclntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 US. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). For an excellent analysis of these important cases, their significance in federal Indian law, and Marshall's opinion in each, see Russell Lawrence Barsh & James Youngblood Henderson, The Road: Indian Tribes and Political Liberty 37–61 (Berkeley: University of California Press, 1980).Google Scholar

8 See Cherokee Nation v. Georgia, 30U.S. (5 Pet.) 1 (1831); Worcester v. Georgia. 31 U.S. (6 Pet.) 515 (1832).Google Scholar

9 See Cohen, supra note 6, at 207–28.Google Scholar

10 See, e.g., The American Indian Religious Freedom Act, S.J. Res. 102, Aug. 11, 1978, Pub. L. No. 95–341, 92 Stat. 469 (codified in part at 42 U.S.C.A. 0 1996 § note (1981)) (establishing a “policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, ex press, and exercise [their] traditional religions”). See also People v. Woody, 61 Cal. 2d 716,394 P.2d 813, 40 Cal. Rptr. 69 (1964) (sustaining right of Indian members of the Native American Church to use peyote in traditional relgious ceremonies, notwithstanding state drug control laws).Google Scholar

11 One familiar example is provided by the infamous Wounded Knee Massacre in 1890, in which the United States murdered 300 Indian men, women, and children performing the Ghost Dance, an integral part of a nonviolent religious movement that predicted the liberation of the Indian from white domination. See Dee Brown, Bury My Heart at Wounded Knee: An Indian History of the American West (New York: Holt, Rinehart & Winston, 1977). See also U.S. Federal Agencies Task Force, American Indian Religious Freedom Act Report (1979) (citing instances of the “common practice” of government repression of traditional Indian religious practices).Google Scholar

12 See generally Bernard W. Sheehan, Seeds of Extinction: Jeffersonian Philanthropy and the American Indian (Chapel Hill, N.C.: Institute of Early American History and Culture, 1973) (discussing philosophy behind governmental policy of removal of Indians to reserved territories).Google Scholar

13 . See, e.g., United States v. McBratney, 104 U.S. 621 (1881) (holding that Indian reservation was within the limits of the state insofar as its crimes by non-Indian citizens against other non-Indians were concerned).Google Scholar

14 See, e.g., Three Affiliated Tribes v. Wold Engineering, 52 U.S.L.W. 4647 (US. May 29, 1984) (No. 82–629) (vacating and remanding North Dakota Supreme Court's judgment that state trial court lacked jurisdiction over Indian tribe's civil action against non-Indian for claim arising on Indian reservation because of “the possibilty that it (state court) was influenced by a misunderstanding of federal law” respecting state jurisdiction in Indian Country, id., at 4653). See also Robert N. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 532–36 (1976) (discussing difficulties in determining criminal jurisdiction in Indian Country).Google Scholar

15 See Berkhofer, supra note 2, at 166–78. See generally John Higham, Strangers in the Land: Pat terns of American Nativism, 1860–1925 (New Brunswick, N.J.: Rutgers University Press, 1955) (discussing racial thinking, integration policy, and the idea of “Americanization” during the late nineteenth and early twentieth centuries).Google Scholar

16 On the history of United States Indian policy during this period, see generally Henry E. Fritz, The Movement for Indian Assimilation, 1860–1890 (Philadelphia: University of Pennsylvania Press, 1963); Robert W. Mardock, The Reformers and the American Indian (Columbia: University of Missouri Press, 1971); Loring B. Priest, Uncle Sam's Stepchildren: The Reformation of United States Indian Policy, 1865–1887 (New Brunswick, N.J.: Rutgers University Press, 1942).Google Scholar

17 See, e.g., Deloria and Lytle's account of the efforts of the Five Civilized Tribes—Cherokee, Choctaw, Creek, Chickasaw, and Seminole—in resisting 150 years of assimilationist federal legislation and policies (at 90–92).Google Scholar

18 See Karl N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941).Google Scholar

19 See Priest, supra note 16, ch. 10; Wilcomb E. Washburn, The Indian in America 209–32 (New York: Harper & Row, 1975).Google Scholar

20 Ch. 576.48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461–479 (1982)). The IRA followed on the heels of a government-sponsored study on the social and economic status of Indians, conducted by Lewis Meriam and Associates. The study, entitled The Problem of Indian Administration (Baltimore: Johns Hopkins Press, 1928), called for radical redirection by the federal government in virtually every phase of Indian affairs. Many of the recommendations focused on the need for strengthening tribal self-government. A subsequent Senate study verified the findings of the Meriam Report, as it came to be called, respecting the history of failure of past assimilative federal Indian policies. John Collier, a long-time critic of federal Indian policy, was named Indian commissioner by the Roosevelt Administration, and together with Felix S. Cohen and Nathan Margold, drafted the Indian Reorganization Act. The act incorporated most of the recommendations for major reform contained in the Meriam Report, along with “some of Colliers' own ideas on cultural renewal and reorganization” (Deloria & Lytle, at 12–15). On the act and its history, see generally Samuel L. Tyler, Indian Affairs: A Study of Changes in Policy of the United States Toward Indians (Provo, Utah: Institute of American Indian Studies, 1964); Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich. L. Rev. 955 (1972).Google Scholar

21 One hundred and eighty-nine tribes voted to accept the IRA and its provisions, while 77 rejected the act.Google Scholar

22 See Cohen, supra note 6, at 148–50; see generally Kenneth R. Philp, John Collier's Crusade for Indian Reform, 1920–1954, at 161–97 (Tucson: University of Arizona Press, 1977) (discussing the mixed reception of the IRA by tribes).Google Scholar

23 See generally Philp, supra note 22, at 187–97 (discussing coercive use of secretarial approval power and Bureau of Indian Affairs pressure to secure tribal compliance with bureau policies).Google Scholar

24 See, e.g., the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93–638, 88 Stat. 2203 (codified at 25 U.S.C. 56 450–450n, 455–458e (1982)). This act enables the federal government to “contract out” to qualifying tribes for the delivery of federal services. Tribes themselves then plan and administer these federally funded programs.Google Scholar

25 Deloria, however, has written on the topic of the erosion of tribal customs and the need to sustain the Indian's unique tribal vision in other contexts, see Vine Deloria, Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence 249–63 (New York: Delacorte Press. 1974); id., The Metaphysics of Modern Existence (San Francisco: Harper & Row, 1979).Google Scholar

26 See ABA Code of Judicial Conduct, Canon 3(A)(4) (1983).Google Scholar

27 . See Ragsdale, Fred L. Jr., Problems in the Application of Full Faith and Credit for Indian Tribes, 7 N.M.L. Rev. 133 (1977). See generally Cohen, supra note 6, at 385, nn.45, 47 (citing cases granting full faith and credit, or recognizing tribal court judgments under comity principles).Google Scholar

28 See Ragsdale, supra note 27, at 142–45.Google Scholar

29 A court, of course, is always free to reject a foreign jurisdiction's law that conflicts with its own notions of public policy. See 16 Am. Jur. 2d Conflict of Laws § 5 (1964).Google Scholar

30 . On contemporary tribalism's reemergence, see Israel, Daniel H., The Reemergence of Tribal Nationalism and Its Impact on Reservation Resource Development, 47 U. Colo. L. Rev. 617 (1976). See also Comment, The Indian Battle for Self-Determination, 58 Calif. L. Rev. 445 (1970); Vine Deloria, Jr., works cited supra note 25; id., We Talk, You Listen: New Tribes, New Turf (New York: Macmillan, 1970).Google Scholar